ment of the ob

ment by the obligee, or person entitled to the conveyance, and the CHAP. 117. validity of such assignment shall be put in issue, the court shall the obligor discause the assignee to be made a party to the bill; and, on his close an assignappearance or non appearance, may direct the same to be tried by ligation. a jury; and, if found fraudulent, it shall be no bar to the conveyance prayed for.

1829, 431, § 3.

SECTION 1. Bail shall always be taken, and the bail bond be How bail shall returned and filed with the writ, in the manner mentioned in the be taken. one hundred and fourteenth chapter.

to be entered on executions.

SECT. 2. If judgment be rendered against the principal in the Names of bail action, in which the bail was taken, the clerk of the court or justice of the peace, issuing the execution on such judgment, shall, on 1821, 67, § 1. the margin of the execution, insert the names of the persons who 4 Greeni. 10. became bail, with the place of their abode, and their addition, provided, they are named in the bail bond; and, if the debtor was committed to jail, such clerk or justice shall note, in like manner, the jail, to which he was committed.

7

Greeni. 80.

SECT. 3. The officer, holding said execution, whether the debtor Officer to notihad given bail to the arresting officer, or to the jailer, shall notify fy bail. Fees. 1821, 67, § 1. the bail personally, or by leaving a notice, in writing by him signed, at the usual place of abode of the bail, if living in his county, at least fifteen days before the expiration thereof, certifying, that he cannot find the principal debtor, nor property wherewith to satisfy the execution; for which service he shall be entitled to demand and receive of the bail the usual fee for the service of a writ, and for travel from the dwelling house of the officer, to the dwelling house of the bail; and shall minute in said notice the amount of the fees; which the bail shall pay in twenty days, unless, one day at least, before the execution is returnable, the bail shall produce and deliver to the officer the principal debtor.

SECT. 4. If the bail shall not have committed the principal to Surrender of

principal into

CHAP. 118. prison, in the manner mentioned in the said one hundred and fourteenth chapter, they may, at any time, before final judgment in the original suit, bring the principal into court, where the action is pending, and deliver him into the custody thereof, and be thereby discharged of their suretyship.

court.

1821, 67, § 2. 14 Mass. 115.

In case of avoidance, offi

cer's duty, and

SECT. 5. In case of the avoidance of the principal, and return on the execution by the officer, that he has had the same execution liability of bail. in his hands at least thirty days before the expiration thereof, and 1821, 67, § 2. that the principal is not found, his bail shall be obliged to satisfy the judgment with interest thereon, from the time when it was rendered, unless he shall discharge himself by surrendering the principal, before final judgment against him on the writ of scire facias, or by other sufficient defence.

Scire facias against bail, in such case. 1821, 67, § 3. 4 Pick. 120.

13 Pick. 339.

Form of the scire facias.

Limitation of such action. 1821, 67, § 8. 7 Mass. 312.

Pleadings, and defence by bail. 8 Mass. 264, 490.

17 Mass. 591.

10 Pick. 49.

Surrender of principal, on scire facias. 1821, 67, 62. 5 Mass. 373. 7 Mass. 169.

Principal to be

committed to jail.

1821, 67, § 3.

When discharg

SECT. 6. When the principal shall so avoid, and his goods, chattels or lands cannot be found to satisfy the execution, the person, for whom judgment was given, shall be entitled to a writ of scire facias in his own name from the same court, against the bail, which may be taken out of the clerk's office in vacation, as well as

term time.

SECT. 7. In such writ, the plaintiff need not declare on the bail bond, but may merely allege, that the defendants became bail in the original action.

SECT. 8. No such action shall be maintained against any person, as a bail, unless commenced within one year from the time judgment was rendered against the principal.

SECT. 9. The bail may plead jointly or severally, that they never became bail, as alleged in the writ, and, under that plea, may avail themselves of every defence, which would avail them in an action of debt on the bond, upon the plea that it is not their bond; or may shew any special matter of discharge, filing a brief statement thereof, as by law provided.

SECT. 10. The bail may surrender the principal in court, before final judgment on the scire facias, and deliver him the order of court, and, on paying all the costs on the scire facias, they shall be discharged.

SECT. 11. The principal, so surrendered, shall be committed to the county jail, there to remain for the space of fifteen days, in order to be taken in execution.

SECT. 12. If the creditor shall not, within fifteen days next after ed, if not taken such surrender of the principal, take him in execution, the sheriff shall discharge him, on payment of the legal prison fees.

in execution.

Proceedings,' when bail is taken in a justice action. 1821, 67, § 4.

SECT. 13. When bail is taken, on mesne process, in an action triable before a justice of the peace, and there shall be a return on the execution issued on the judgment in such suit, that the principal is not found; said justice may issue a scire facias thereon against the bail, to be served seven days before the day of trial; and, if no sufficient cause is shown to the contrary, he may render judgment for the debt and costs recovered, with interest thereon, from the time judgment was rendered against the principal; and it shall be no bar to such scire facias, that the debt and costs on the original judgment, when added together, shall exceed the sum of twenty dollars.

Surrender, and

SECT. 14. If the bail shall, at any time before final judgment CHAP. 118. in the original suit is rendered, or upon the return of the scire facias and before final judgment thereon, bring the principal before such commitment of principal, in justice, and procure the attendance of the sheriff, his deputy, or a such case. constable of the town, in which the court is holden, to receive such 1821, 67, § 5. principal, such justice shall make a record of such surrender, and shall order him into the custody of such officer; and he shall commit the principal to jail, to be proceeded with as mentioned in the eleventh and twelfth sections; and, on payment of costs arising on the scire facias, the bail shall be fully discharged.

SECT. 15. It shall be the duty of the officer to attend before such justice, for the purpose aforesaid, when so requested; and, for so doing, he shall be allowed the same fees as for arresting and committing defendant on mesne process; and, for neglect of official duty in the above case, he shall be answerable for all damages to the party injured thereby.

15 Mass. 535.

Officer's duty,

and fees.

1821, 67, § 7.

such case, after

1821, 67, § 6.

SECT. 16. When the principal is surrendered to such justice, Surrender, in after final judgment in the original action, the bail shall deliver to judgment. the officer a copy of the entry of the surrender, which entry the justice is bound to make, attested by the justice; and the officer shall deliver the same to the jailer, on committing the prisoner to his custody; and this shall be a sufficient warrant to the officer, for receiving and conveying him to jail, and to the jailer, for holding him in custody.

SECT. 17. If the principal is surrendered, before final judgment Surrender, bein the original suit, the bail shall deliver to the officer a copy of the fore judgment. original writ, with the return indorsed thereon, attested by the justice; and the officer shall deliver the same copy to the jailer; and

this shall be a sufficient warrant to the officer and jailer, as men

tioned in the preceding section.

against princi

SECT. 18. Bail may have their remedy against their principal, Remedy of bail by an action on the case, for all damages sustained by them, by pal. reason of their suretyship.

1821, 67, § 9.

CHAPTER 119.

OF TRUSTEE PROCESS OR FOREIGN ATTACHMENT.

SECT. 1. In what actions trustee process SECT. 8. What corporations may be sum

may be used.

2. Form of the writ.

3. Mode of service.

4. Effect of service on the trustee.
5. In what county the action shall be
commenced.

6. Insertion of additional names of
trustees.

7. Notice to principal, if absent from
the state. Trustee may appear
for him.

moned as trustees.

9. Trustee, about to leave the state,
may disclose before a justice.

10. Course of proceeding in such case.
11. Any trustee may so disclose, by

consent.

12. An inhabitant of another state
may be adjudged trustee.
13. Effect, if defendant in a suit be
summoned as trustee of the plain-
tiff.

A

4

SECT. 85. Penalty, if trustee disclose falsely. [SECT. 93. Subsequent proceedings.

86. Trustee exempt from costs on sci

re facias, in certain cases.

87. Form and service of trustee pro-
cess for justice courts.

88. In what county to be brought.
89. Default, if trustee do not appear.

90. Costs, if discharged.

91. May retain costs, if adjudged trus

tec.

92. Costs, on discontinuance.

94. Discharge of trustee, if judgment
be less than five dollars. Excep-
tion.

95. How execution shall issue, if de-
fendant or trustee remove from
the county,

96. Proceedings, if trustee be dis-
charged, living in a county differ-
ent from plaintiff and defendant.

CHAP. 119.'

In what actions trustee process 1821, 61, § 1. 1824, 275, § 1.

may be used.

SECTION 1. All personal actions, except those of detinue, replevin, actions on the case for malicious prosecution, slander by writing or speaking, and those for assault and battery, may be commenced by foreign attachment, or trustee process, in the supreme judicial court or district court, or, when the amount demanded in damages is not less than five dollars, nor more than twenty dollars,. before a municipal or police court, or a justice of the peace. SECT. 2. The writ shall be in the form heretofore established, Form of the authorizing an attachment of goods and estate of the principal defendant, in his own hands, as well as in the hands of the trustees; and may be varied from time to time, as the supreme judicial court may order..

writ.

vice.

SECT. 3. The officer, serving such writ, shall attach the goods Mode of serand estate of the principal, of the value required, if so much can 1821, 61, § 1. be found by him, and read the writ to him, or leave a copy of it, at his last and usual place of abode; which shall be a sufficient service on the principal, whether any trustee is holden or not. SECT. 4. Such service, on the trustee, shall bind all goods, Effect of service effects or credits of the principal defendant, entrusted and deposited in his hands or possession, to respond the final judgment in the action, in like manner as goods or estate, when attached by the ordinary

process.

on the trustee. 1821, 61, § 1.

be commenced.

1821, 61, § 1.

14. Mass. 132.

SECT. 5. If all the trustees live in the same county, the action In what county shall there be brought, and, if they reside in different counties, the the action shall action shall be commenced in any [county], in which any one of them resides; and, in a trustee process against a corporation aggregate, such corporation, for this purpose, shall be considered as having its residence in the county, in which such corporation has its established or usual place of business, or shall have held its last annual meeting, or shall usually hold its meetings.

SECT. 6. The plaintiff may insert the names of as many persons, as trustees, as he may deem necessary, at any time before the process is served on the principal, but not after; and he may cause a further service to be made on any of the trustees, if found expedient, if the service be afterwards made or renewed on the principal; but no costs for services shall be taxed for the plaintiff in such case, except for that last made.

6 Greenl. 405. 22 Pick. 250.

Insertion of additional names 1821, 61, § 2.

of trustees.

cipal, if absent Trustee may

SECT. 7. When the principal is out of the state at the time of Notice to printhe service, and has no agent within this state, the same notice shall from the state. be given, as is provided in the twenty eighth section, of chapter, appear for him. one hundred and fourteen; or the same proceedings may be had, 1821, 61, § 3. as is provided in sections, two and three, of chapter, one hundred 1 Greenl. 325.